Del. R. Evid. 504

As amended through December 15, 2023

Rule 504 - Spousal Privilege

(a)Definitions. In this rule:

(1) "Confidential communication" means a communication that an individual made privately to the individual's spouse that was not intended for disclosure to any other person.

(2) "Spouse" means a present or former spouse.

(b)Competence to testify. An individual may testify for or against a spouse in any proceeding.

(c)General rule of privilege. An individual has a privilege to refuse to testify and to prevent the individuals spouse from testifying as to any confidential communication between the individual and the spouse during their marriage

(d)Who may claim the privilege. An individual may claim the privilege on the individual's own behalf An individual is presumed to have authority to claim the privilege on the spouse's behalf.

(e)Exceptions. There is no privilege under this rule in the following types of proceedings:

(1) A proceeding that charges one spouse with a wrong against the person or property of the other spouse.

(2) A proceeding that charges one spouse with a wrong against the person or property of a child of either spouse.

(3) A proceeding that charges one spouse with a wrong against the person or property of a person residing in the household of either spouse.

(4) A proceeding that charges one spouse with a wrong against the person or property of a third person committed in the course of committing a crime against the other spouse, a child of the either spouse, a person residing in the household of either spouse, or the third person.

(5) A proceeding brought under Title 13 of the Delaware Code, or Chapter 9 of Title 10 of the Delaware Code.

(6) Any proceeding when the interests of the spouses are adverse.

Del. R. Evid. 504

Amended November 28, 2017, effective 1/1/2018.

Comment

This rule is based on U.R.E. 504 which is based on draft of F.R.E. 505. See comment to Rule 501.

Rule 504(a) tracks U.R.E. 504(a), but was amended in 2017 to clarify that "spouse" includes a former spouse.

Rule 504(b) provides that an individual may testify for or against a spouse in civil as well as criminal cases. This rule removes the common law disability against 1 spouse testifying against the other. Such testimony is permitted unless the testimony involves a confidential and a privilege is asserted as to it.

Rule 504(c) generally tracks U.R.E. 504(b).

Rule 504(d) provides that an individual may claim the privilege on their own behalf and is presumed to have authority to claim the privilege on behalf of their spouse.

Rule 504(e) generally tracks U.R.E. 504(d) except that "wrong" appears instead of "crime" and Rule 504(d)(5) excludes the privilege in proceedings under Title 9 and Chapter 9 of Title 10 of the Delaware Code.

For prior Delaware cases illustrating the law covered by this rule, see Mole v. State, Del. Supr., 396 A.2d 153 (1978); State v. Thompson, Del. Super., 136 A.2d 336 (1957); Duonnolo v. State, Del. Supr., 397 A.2d 126 (1978).

D.R.E. 504 was amended in 2017 in response to the 2011 restyling of the Federal Rules of Evidence. The amendment is intended to be stylistic only. The pre-2017 "Comment" to D.R.E. 504 was revised only as necessary to reflect the 2017 amendments. There is no intent to change any result in ruling on evidence admissibility.